Orega, Hector R.

, Esq
Orega, Canossa & Associates, PLC
315 W. 9th St., Suite 613
Los Angeles, CA 90015
U.S. Department of Justice
Executive Ofce fr lmigation Review
8oor1of immgrat|onappeals
OjiceoftheC|er|
5107 Leesburg P, Suie 2000
Fals Curch, Virginia 22041
OHS/ICE Ofice of Chief Counsel LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: HERNANDEZ AVILA, NOE CESAR A 079-531-84
Date of this notice: 8/30/2012
Enclosed is a copy of the Board's deision and order in the aove-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Sincerely,
D/ c D
Donna Carr
Chief Clerk
lucasd
Userteam: Docket
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Cite as: Noe Cesar Hernandez-Avila, A079 531 484 (BIA Aug. 30, 2012)
U.S. Department of Justce
Executive Office for Immigration Revie\v
De< is ion of the Board of Immigration Appeals
Falls Church. Virginia 22041
File: A079 531 484 - Los Angeles, CA
I r: NOE CESAR HERNANDEZ A VILA
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Hector R. Ortega. Esquire
ON BEHALF OF OHS: Elena Kusky
Assistant Chief Counsel
CHARGE:
][ 3 J tv\
Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turpitude
APPLICATION: Termination
The respondent is a native and citizen of El Salvador and a lawfl permaent resident of the
United States. The Department of Homeland Security ("'OHS") appeals fom the Immigation
Judge's May 27, 2011. decision terminating removal proceedings. The appeal will be dismisse.
At issue is whether the respondent's November 20, 2007, conviction under Califora Penal
Code 653w(a) (failure to disclose origin of a recording or audiovisual work) constitutes a crime
involving moral turpitude ("'ClMT"), thereby rendering the respondent removable under section
237(a)(2)(A)(i) of the Immigration and Nationality Act 8 U.S.C. I 227(a)(2)(A)(i), a an alien
convicted of a CIMT within 5 years afer admission for which a sentence of I year or longer may be
imposed.
CPC 653w(a)(I) provides:
A person is guilty of failure to disclose the origin of a recording or audiovisual work
if, for commercial advantge or private fnancial gain, he or she kowingly advertises
or ofers for sale or resale, or sells or resells, or causes the rental, sale, or resale of,
or rents, or manufactures, or possesses for these purposes, any recording or
audiovisual work, the outside cover, box, jacket, or label of which does not clearly
and conspicuously disclose the actual true name and address of the manufacturer
thereof and the name of the actual author. artist, performer, producer, program er,
or group thereon. This section does not require the original manufacturer or
authorized licensees of sofware producers to disclose the contributing authors or
progammers.
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Cite as: Noe Cesar Hernandez-Avila, A079 531 484 (BIA Aug. 30, 2012)
A079 S3! 484
The record refects that the respondent pied nolocon/enaereto Count I of the Felony Complaint,
which provides that he 'did unla..fully fail to disclose the origin of a recording and audiovisual
work" (Exh. 4).
Pursuant to our de nova review and contrary to the DHS's arguments on appeal, we agree with
the Immigation Judge that CPC 653w(a) is not categorically a CIMT (l.J. at 3-4). See 8 C.F.R.
I 003. I ( d)(3 )(ii). We also agree with the Immigration Judge that the respondent's conviction is not
a CIMT under the modified categorical approach because apart fom the Felony Complaint, there
is no frther infrmation regarding the factual basis of his plea (I.J. at 4-5). Moreover, we agree with
the Immigration Judge that without other indicia ofreliability, the police re
p
orts submitted by the
D
HS do not support a finding that the respondent's conviction is a CIMT under the third step of
Ha/tero}S|/va1rev|oo.24 I&N Dec. 687 (A.G. 2008) (l.J. at 5-6). As noted by the Immigration
Judge, the arrest reports were not incororated into the respondent's plea and a not substantiated
by separate witness statements or direct admissions by the respondent (l.J. at 6). In the absence of
such evidence or a plea colloquy. we agree that the OHS did not meet its bmden to establish
removability a charged. Accordingly, the following order is entered.
ORDER: The DHS's appeal is dismissed.
BOARD
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Cite as: Noe Cesar Hernandez-Avila, A079 531 484 (BIA Aug. 30, 2012)

' i
--
UNlTED BTATEB DEPARTMENT OF 3UBTlCE
EXEC0T1VE OFFlCE FOR lMlGRTlON REVlEW
lMMlGRTlON CO0RT
606 BOUTB OLlV BT., l5TP FL.
LOB AGELEB, CA 90014
ORTEGA, CANOBBA m AB5OClATES, PLC
mCTOR . ORIEGA, EBQ.
\:s. 9TH BTREET, BTE. 6l3
LOB

GEIEB, C 90015
1N THE MATTER OF FlLE 1 079-53l-484
BERNANOE2 AVlLA, NOE CEBAR
0NABLE TO FORWAO - NO ADDREBB PROVlDED
OATE: May 3], 20ll
1,
ATTACHED lB A COPY 0F THE DEClB1ON OF THE )MTGRATlON J0OGE. THl5 OEC|SlON

1B FlNA UNLEBB AN APPEAL lB FlLED WlTB THE BOARD OF 1MMlGRATlON APPB

Wl1HlN 30 CAENDM OAYB OF TBE DATE OF THE MAlLlNG OF THlB WRlTTEN DlBlON.
BE TBE ENCLOBED FOR

AD lNBTRUCTlONB FOR PROPERLY PREPMlNG

`
Y0R jPP.
YO NOTlCE OF APPEA. ATTACHED OOC0MENTB, AN FEE OR FEE WA|V.RBQEBT
MUBT bE MlLED TO: BOARD OF lMMlGRATlON APPEALB
.
!
OFFlCE OF THE CLERK
P.O. BOX 8530
FALLB CHURCB, VA 2204l
.
:,
,
f
ATTACPEO lB A COPY O 'I } EBNO THF3NlGRAT1C J0OGE A THE RBB0IT
OF YOUR FAlLURE TO APt

SHFDULED DEPORTATlON OR
REMOVAL HEARlNG.
TH1B DEClBlON 1B FlAL A MOTlON TO REOPEN lB FlLED IN ACCORDACE
WlTB BECTlON 242bc) 1 0

lMIGRATlON

ANO NATlONALlTY ACT, 8 U.B.C.

BECTlON l252Bc; (3; lN DEPOATlON

GB OR BECT1ON 240c; |61,

8 U.S.C. BECTlON l229ac) (61 1N REMOVAL

PR NGB. lF YOU FlLE A MOTlON

TO REOPEN, YO0R MOTlON M0BT BE F1LED WlTH THlB CO0RT:
lMMlGRTlON COUT
606 BO0TH OLlVE BT., l5TB FL.
LOB AQEEB, CA 900l4
OTHER:
ach1d f,o,1'-ft Ol5}
CC: ELENA K0BKY, EBQ. (TR1AL ATTORNEY)
606 B. O!lVE BT 8TB F

LOOR
LOB AGELEB, CA 900l4 BENT bY MAlL ON 05/3l/20ll
FF
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION RVIEW
IMMGRATION COURT
LOS ANGELES, CALIFORNIA
File No.: A 79 531484
In the Matter of:
HERNANDEZ A VILA,
Noe Cesar
Respondent
)
)
)
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)
)
)
)
IN REMOVAL PROCEEDINGS
CHARGE: Immigration and Nationality Act (INA) 237(a)(2)(A)(i)
-alien convicted of a crime involving moral turpitude committed within jve
years after the date of admission for which a sentence of one year or longer
ma be imposed
APPLICATION: Motion to Terminate
ON BEHALF OF RESPONDENT:
Hector R. Ortega, Esquire
Ortega, Canossa and Associates, PLC
315 West Ninth Street, Suite 613
Los Angeles, Califoria 90015
ON BEHALF OF THE GOVERNMNT:
Elena Kusky, Assistant Chief Counsel
Department of Homeland Security
606 South Olive Street, 8th Floor
Los Angeles, Califria 90014
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. Procedural History
Respondent is a native ad citizen of El Salvador who was admitted to the United States as a
lawfl permanent resident on Januay 4, 2005. On November 20, 2007, Respondent was convicted
of violating Califra Penal Code (CPC) section 653w(a) (failure to disclose origin of a recording
or audiovisual work). On April 1, 2008, the Goverent instituted removal proceedings against
Respondent by filing a Notice to Appear (NTA) with the Court. See 8 C.F.R. 1003.14. In the
NTA, t11e Goverent charges Respondent with removability under INA 237(a)(2)(A)(i). Exh. I.
Although Respondent failed to appear for his initial hearing on June 5, 2008, the Court reset
the matter to allow the Goverent time to fle a brief and frther evidence in support of the
removability charge. On July 15, 2008, Respondent again filed to appear. However, because the
Goverent did not have Respondent's file, the proceedings were administratively closed. The
Court subsequently ganted the Goverent's Motion to Recalenda, fled September 24, 2010.
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On December 2, 2010, Respondent filed to appear. Neverteless, based upon the
Goverent's failue to fle a sufcient brief, proceedings were reset.' On March 3, 2011,
Respondent appeared before the Court wth counsel. Proceedings were continued afer the Court
infored the Goverent that its brief, fled on January 4, 2010, was insufcient t meet its burden.'
On April 15, 2011, the Goverent fled a supplemental brief. On April 22, 2011,
Respondent filed a Motion to Terminate (Motion).
For the following reasons, the Court will GRANT Respondent's Motion.
II. Law and Analysis
The Goverent beas the burden of proving by clear ad convincing evidence that
Respondent is removable. INA 240(c)(3)(A). Pursuant to INA 237(a)(2)(A)(i), a alien, who
within fve years of admission, has been convicted of a crime involving moral turpitude for
which a sentence of one year of more may be imposed is removable.
Here, Respondent was admitted to the United States as a lawl peranent resident on
January 4, 2005. The Goverent has submitted conviction records establishing that on
November 20, 2007, Respondent pleaded nolo contendere to violating CPC 653w(a). Exh. 5.
CPC 653w(a) provides in pertinent pa that:
A person is guilty of failure to disclose the origin of a recording or audiovisual
work if, fr commercial advantage or private fnancial gain, he or she knowingly
advertises or offers fr sale or resale, or sells or resells, or causes the rental, sale
or resale, or rents, or manufactures, or possesses fr these purposes, any recording
or audiovisual work, the cover, box, jacket, or label of which does not clearly and
conspicuously disclose the actual tue name and address of the manufacturer
thereof and the name of the actual author, artist, performer, producer,
programer, or group thereon. This section does not require the original
maufactuer or authorized licensees of sofare producers to disclose the
contbuting authors or program ers.
In the Ninth Circuit, crimes are deemed to involve moral turpitude if they fall into one of
two categories: (1) offenses involving grave acts of baseness and depravity that offend the most
fdamental values of society and (2) ofenses involving faud. Navaro-Lopez v. Gonzales, 503
F.3d 1063, 1074-75 (9th Cir. 2007). To fll within the frst category, the crime must involve
"some level of depravity or baseness so far contary to the moral law that it gives rise to moral
outrage." Id. at 1071. Such crimes must also be done willflly or with evil intent. Ouintero
Salaz v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007). To fall within the second category, the
1 The Goveent's brief, filed December 2, 2010, discussed the legislative history of CPC 653w(a) but failed to
address how the statute's elements constitute a crime involving moral turpitude under the categorical or modifed
categorical approaches.
2 The Goverent's brieffocuse on policy rather than the elements ofCPC 653w(a).
2
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intent to defaud need not b evident on the face of the statute, but "may also be implicit in the
nature of the crime." Winestock v. INS, 576 F.2d 234, 237 (9 Cir. 1978).
A precedential decision issued by the Attorey General attempted to established a
uniform administrative framework for deterining whether an alien has been convicted of a
crime involving moral turitude. See Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). To
determine whether an alien's prior conviction constitutes a crime involving moral turpitude, the
Court should: (I) look to the statute of conviction to determine whether, categorically, there is a
"realistic probability, not a theoretical possibility," that the statte would be applied to reach
conduct that does not involve moral titude; (2) if that "categorical" inquiry does not resolve
the question, conduct a modified categorical analysis by looking to the alien's record of
conviction, including documents such as the indictment, the judgment of conviction, jury
instructions, a siged guilty plea, and the plea tanscript; and (3) if the record of conviction does
not resolve the inquiry, consider any additional evidence the adjudicator determines is
"necessary or appropriate" to resolve accurately the moral turpitude question. Id. at 704. Absent
controlling precedent, the Court is bound to follow Silva-Trevino. Matter of Guevara Alfaro, 25
I&N Dec. 417, 424 (BIA 2011).
A. Categorical Approach
I the present case, the Goverent contends that CPC 653w(a) is a crime involving
moral turitude because it is an ofense involving fraud. Te Goverent concedes that intent to
defaud is not a specifc element ofCPC 653w(a). See CPC 653w(a). Rather, the
Goverent argues that CPC 653w(a) requires that the defendant knowingly conceal the true
nature of the product's origin, which it argues is tantamount to faud. See id.
As noted above, a crime may involve moral turpitude even if the intent to defaud is not
an explicit element of the ofense. In Matter of Kochlani, 24 J&N Dec. 128, 130 (I 2007), the
Board oflmmigration Appeals (the Board) held that even though 18 U.S.C. 2320, the federal
counterfeiting statute, could be violated without proof of a specific intent to deceive the
purchaser, it nonetheless involves faud so as to constitute a crime involving moral turpitude.
The Boad reasoned that, like the act of selling counterfeit documents or the act of counterfeiting
currency, the federal counterfiting statute requires I) trafcking in counterfeit or faudulent
items or objects; 2) proof of intent to trafic and knowledge that the items or objects are
counterfeit; and 3) the prohibited ofense results in significant societal ha. Id. at 131.
Similar to the congressional intent in support of 18 U .S.C. 2320, CPC 653w(a) "was
enacted a part of a comprehensive statutory scheme desiged to prevent and punish the
misappropriation of recorded music for commercial advantage or private financial gain." People
v. Anderson, 286 Ca. Rptr. 734, 736 (Cal. Dist. Ct. App. 1991). The legislature's interest in
enacting CPC 653w(a) was a "desire to protect the public in general, and the many employees
of the vast entertainment industry in particular, fom the hundreds of millions of dollars in losses
sufered a a result of the piracy and bootlegging of the industry's products." Id. at 590. Based
upon the legislative intent behind the statute and other court's interpretations of CPC 653w(a)'s
application, the Court finds that there is a realistic probability that CPC 653w(a) applies to
conduct which involves knowingly distributing counterfeited items.
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However, unlike the fderal counterfeiting statute which at all times requires a showing
of an intent to trafic items or objects which the person kew were counterfeit, CPC 653w(a) is
not limited to knowingly trafcking in counterfeited goods. For example, as noted by
Respondent, a person could be convicted under CPC 653w(a) for selling his own recording or
audiovisual work if the item was not in its original packaging. Indeed CPC 653w(a)'s broad
language could realistically allow a conviction if a person knowingly forwarded items for sale
which were damaged so that a portion of the manufacturer's label was no longer clearly
displayed. Jn either example, the items would not b counterfeited but the individual who
knowingly sold or forwarded.the items for sale could be convicted under CPC 653w(a).' See
also Anderson v. Nidof, 26 F.3d 100, 102 (9th Cir. 1994) (noting that CPC 653w(a) prohibits
the selling of works without disclosing the manufcturer and author of the recording regardless
of its cop)Tight status). Although preventing the "dishonest dealing and deliberate exploitation
of the public and the mark owner" may have been the policy behind CPC 653w(a), the statute
a written encompasses broader conduct, including conduct which does not entail an intent to
defaud. Accordingly, as there is more than a theoretical possibility that the statute could be
applied to conduct which does not involve moral turpitude, the Court finds that CPC 653w(a)
is not categorically a crime involving moral tupitude.
B. Modied Categorical Approach
When the statute is unable to provide a defnitive solution, the Court should then conduct
a "modified categorical analysis." Under the modified categorical approach, the Court is
restricted to examining "'a narrow specified set of documents that are part of the record of
conviction." Tokalty v. Ashcrof, 371 F.3d 613, 620 (9th Cir. 2004). The Ninth Circuit ha
formulated a list of documents limited to "the indictment (but only in conjunction with a signed
plea agreement), the judgment of conviction, the minute order flly documenting the judgent,
jury instructions, a signed guilty plea, or the transcript fom the plea proceedings." Ruiz-Vidal
v. Gonales, 473 F.3d 1072, 1079 (9th Cir. 2007).
In the present matter, the Goverent submitted the complaint and the minute order
indicating Respondent's plea.' The Goverent did not submit the plea ageement. Although
the Goverent submitted the complaint, there is no evidence that Respondent pleaded "as
' The Cour no1es that because CPC 653w(a) is a relatively new statute, the Court does not have the bneft of case
law interpreting its application and therefre, the Court is resticted to constuing it own examples in which
individuals might likely be subject to prosecution under the statute.
4 The Goverent has also submitted police reports periing to Respondent's conviction. Police reports may only
be considered in a modified categorical approach if they have been "specifcally incorporated into the guilty plea by
the defendant." Mater of Santos Enrique Milian-Dubon, 25 l&N Dec. 197 (I 20 I 0) (interal quotations
omitted). In Matter of Santos, the Board considered police reports pertaining to the respondent's conviction in its
modifie categorical analysis because te respondent's plea fr included the phrase, "'slip to police report as
factual basis,"' and was accompanied by the respondent's initials. Id. Consequently, the Board held that the police
reports constituted findings of fact adopted by the defendant upon entering into the plea, and thereby became a part
of the judicial record on which courts may rely. Id. In the present case, none of the other documents in the record
indicates that Respondent adopted the findings in the police report such that this Court could rely on the report in
its analysis. As a result, the Coun may not consider the police reports in conducting its modifed categorical
analysis.
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charged in the infrmation." Thus, even if the complaint provided a factual basis for his
conviction, the Court would not be able to rely upon it. United States v. Vidal, 504 F.3d 1072,
1087 (9th Cir. 2007). The minute order establishes that on November 20, 2007, Respondent
pleaded nolo contendere to violating CPC 653w(a). However, the minute order does not recite
the ftual basis fr his conviction. The Goverent has not submitted any other judicial
document establishing that Respondent was convicted of knowingly intending to defraud,
knowingly distibuting counterfeited items, or any other morally turpitudinous act. Accordingly,
it is inconclusive under the modified categorical approach whether his conviction is a crime
involving moral turpitude.
C.
Third Step
When the Court cannot make a deterination under either a categorical inquiry or a
modifed categorical analysis, the Court may consider evidence beyond the frmal record of
conviction. Silva-Trevino, 24 l&N Dec. at 688. This inquiry allows the Court to look beyond
the statutory language and the record of conviction, "to the extent [the Court] deem[ s] it
necessary and appropriate." Id. The goal of this inquiry, however, is to discer the nature of the
underlying conviction, but "not an occasion to relitigate fcts or determinations made in the
earlier criminal proceeding." Id. According the Board, the Court should not consider evidence
outside the record of conviction when such evidence was excluded fom the underlying plea.
See Matter of Ahortalejo-Guzan, 25 l&N Dec. 465, 467 (BIA 2011) (stating that "[w]here the
record of conviction conclusively shows that a conviction does not involve family violence, the
fact that other evidence outside of the record of conviction may indicate that the victim was part
of the offender's family does not establish that the ofender was convicted on that basis"). The
Ninth Circuit ha emphasized the "reliability" of documents and attributed little or no weight to a
respondent's own admissions during the judicial proceeding. See S-Yon! v. Holder, 600 F .3d
1028, 1035 (9th Cir. 2010) (rejecting court's reliance solely upon an alien's judicial admissions
and an unidentified "conviction document" to determine that whether his conviction was a
controlled subswnce ofense).
Furthermore, a respondent is expressly guaranteed "a reasonable opportunity to examine
the evidence against [him], to present evidence on the [respondent's] own behalf, and to cross
exaine witnesses presented by the [Department] ... " Hemandez-Gadarrama v. Ashcrof, 394
F.3d 674, 681; INA 240(b)(4)(B); see also 8 C.F.R. 1240.10(a)(4). Although the rles of
evidence are not applicable to immigration hearings, the constitution and statutory guarantees of
due process require the Goverent's decision regarding whether to produce a witess or rely on
hearsay statements to not be wholly unfettered. Hemandez-Gadarraa, 394 F.3d at 681; Saidane
v. INS, 129F.3d 1063, 1065 (9thCir.1997) (citing Baliza v. INS, 709F.2d 1231, 1233-34 (9th
Cir. 1983)).
In support of its assertion that Respondent's conviction is a crime involving moral
turpitude, the Goverent has ofered the arrest reports underlying Respondent's conviction.
These reports relate the amount of recording and audiovisual materials in Respondent's
possession, their location, their content, and their descriptions. Respondent's alleged conduct
and profit is also reported. While the Goverent has argued fr the consideration of the arrest
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-
. reports underlying Respondent's subsequent indictment ad conviction, the Court finds that the
arrest reports are legally insuficient to meet the Goverent's burden in this instance.
As the Board has explained in Matter of Teixeira:
[R]eliable police reports ca be very usefl in deterining the circumstaces
surrounding an arest. But, a particula criminal incident can ofen result in the
violation of multiple crminal provisions of law. The arest report typically will
not tell us what charges the prosecution chose to pursue, nor which of those
charges actually resulted in a "conviction." There may be a wide gulf between
the most serious ofense an individual may have committed and what he
ultimately is convicted of having done.
21 I&N Dec. 316, 326 (BIA 1996).
The contents of the arrest reports a entirely hearsay, and the Goverent has made no
indication that it is willing or able to produce the drafer. There is no indication tat Respondent
admitted to facts in the arrest reports or that their contents were incorporated in his plea.
Moreover, arest reports are one-sided recitations of events aimed at establishing probable cause
or reasonable suspicion in criminal proceedings. The reports are not substantiated by separate
witness statements or Respondent's direct admissions. As cautioned by the Attorey General in
Silva-Trevino, the goal of the Court's "inquiry is to discer the nature of the underlying
conviction where a mere exaination of the statute itself does not yield the necessary
infrmation; it is not an occasion to relitigate facts or determinations made in the earlier criminal
proceeding." Silva-Trevino, 24 l&N Dec. at 690. Without more indication of their reliability,
the Court concludes that the arrest report is insuficient to meet the Goverent's burden. In
this case, the Goverent has failed to provide any other evidence concering the nature of
Respondent's conviction.
Based on the foregoing, the Court cannot conclude that Respondent's CPC 653w(a)
conviction is a crime involving moral turpitude. Therefore, the Court finds that the Goverent
has not met its burden to establish removability as charged.
ORDER
IT IS HEREBY ORDERED that Respondent's Motion to Terminate be
GRANTED.
DATE: l

6
. Ashley Tabaddor
Immigration Judge
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m
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